Owen M.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 3, 20180120161409 (E.E.O.C. May. 3, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Owen M.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161409 Agency No. 200H-0630-2015102732 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 3, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Worker, WG-2, at the Harbor Veterans Affairs Health Care System (HVAHCS) in Brooklyn, New York. During the relevant time, Complainant’s first level supervisor was the Environmental Management Service (EMS) Supervisor (S1) and his second level supervisor was the General Foreman (S2). Another EMS Supervisor (S3), who was not generally in Complainant’s chain of command, was Complainant’s supervisor when S1 was not present. Complainant worked the night shift on the evening of March 30, 2015, which ran from 3:30 p.m. to midnight. On that evening, S1 was off work and S3 was the sole supervisor for all Housekeeping Workers on the night shift. Complainant stated that he took his lunch break with another coworker (W1) around 8:00 p.m. He stated that when he was on his way back from his break, S3 came out 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120161409 2 of an elevator and they stared at each other. Complainant claimed that S3 looked at him and said, “suck my dick.” Complainant stated he asked S3 what he said and S3 repeated, “suck my dick.” Complainant stated S3 then left. Complainant noted that W1 was close by and he asked W1 if he had heard what S3 stated and W1 said he had heard it. Complainant stated that he informed S1 of the incident a day or two after the incident and received no response. Complainant stated that he contacted an EEO Counselor on April 6, 2015. Complainant admitted that prior to March 30, 2015, he did not tell S1 that S3 was being sexually inappropriate. Complainant noted that on March 30, 2015, S3 presented him with a Report of Contact, which ultimately resulted in a Three-Day Suspension. This Report of Contact was related to an incident which occurred earlier in the shift on March 30, 2015, around 3:30 p.m. when assignments were being handed out to employees. Complainant contested his suspension through the union grievance process, and it was not an issue raised in his EEO complaint. The suspension was later reduced to a reprimand. S3 denied Complainant’s allegations. S3 stated that at the beginning of the shift on March 30, 2015, an incident occurred with Complainant while he was handing out assignments that resulted in him creating a Report of Contact regarding Complainant’s behavior. He stated that he served this Report of Contact on Complainant, and only after that, did Complainant allege that S3 sexually harassed him. S1 stated that he did not recall receiving a letter from Complainant regarding the March 30, 2015 incident. S1 stated that if he did receive such a letter, he would have forwarded it up the chain of command. Complainant provided a letter dated April 10, 2015, addressed to S1, regarding the allegations occurring on March 30, 2015. S2 stated that she witnessed the incident at the beginning of the shift on March 30, 2015, and that she created a Report of Contact as a result of Complainant’s behavior. She stated that Complainant had made unsubstantiated allegations of sexual harassment against her in the past. S2 stated that, in general, some use of foul language or curse words occurs among the housekeeping staff, but nothing excessive. W1 stated that S3 harassed him and created a hostile work environment. He stated that he heard S3 tell Complainant “suck my dick” two times on March 30, 2015. W1 stated the comment “seemed suggestive.” 0120161409 3 On May 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when: On March 30, 2015, his shift supervisor told him, on two separate occasions, to “suck my dick.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). At the outset, we note that Complainant does not challenge the definition of his complaint as framed by the Agency. Moreover, we find the record in the present case was adequately developed. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc, EEOC Notice No. 915.002 (Mar. 8, 1994). Upon review, we find the alleged incident was not sufficiently severe or pervasive to establish a hostile work environment. Complainant’s sexual harassment claim consists of a comment made by S3 twice during one conversation. A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). 0120161409 4 For purposes of this decision, the Commission assumes the comment was made as alleged by Complainant. However, we note that whether the statement was a rude comment or a proposition it was made during a single conversation, was not severe, physically threatening, or an unreasonable interference with Complainant’s work performance. We note there was no physical contact, no alleged physical contact, and no physical intimidation involved. The Commission finds that the insularity and isolated nature of the conduct at issue was insufficiently severe or pervasive to establish sexual harassment or a discriminatory hostile work environment. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120161409 5 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 3, 2018 Date Copy with citationCopy as parenthetical citation